I.
PERTINENT FACTS AND PROCEDURAL HISTORY
In
December 2019, plaintiff filed suit against defendants
alleging that Saini, an employee of Balram, had rear-ended a
vehicle driven by plaintiff, causing injury; both Saini and
plaintiff were operating Freightliner tractor/semi-trailers
at the time. The accident occurred in Michigan; defendants
are Canadian citizens. A proof of service filed on March 13,
2020 indicates that Balram was personally served at an
address in Mississauga, Ontario on February 26, 2020, and
that Saini was personally served at an address in Brampton,
Ontario on March 11, 2020.
Defendants
did not file an answer or otherwise respond to the complaint.
The record of the subsequent proceedings in the trial court,
as is reflected in the following bullet points, is-to say the
least-confusing:
• On April 10, 2020, plaintiff's counsel e-filed a
Proof of Service reflecting service by email (on that date)
of "Default, Request, Affidavit and
Entry: Default Request & Entry - Watson."
"Watson," of course is plaintiff's name, and
neither defendant is referenced in the Proof of Service.
Further, the Proof of Service identified the "Person
Served" as "Maurice Davis," i.e.,
plaintiff's own counsel.
• On May 20, 2020, a Default Request and Entry was
entered in the trial court record appearing to reflect the
default of Saini; the request for default bore a date of
April 10, 2020, but was not signed by plaintiff's
counsel. The document nonetheless appears to reflect that the
court clerk entered the default on May 20, 2020, inasmuch as
the space for the clerk's signature reflected the
typewritten entry, "/s/ Stacey Stallworth." The
Certificate of Mailing portion of the document reflected
neither a date nor a signature.
• On May 22, 2020, a similar Default Request and Entry
was entered in the trial court record appearing to reflect
the default of Saini; this request for default bore a date of
May 21, 2020, and was signed by plaintiff's counsel (by
way of the typewritten entry, "/s/ Maurice Davis").
The document appears to reflect that the court clerk entered
this default on May 22, 2020, inasmuch as the space for the
clerk's signature again reflected the typewritten entry,
"/s/ Stacey Stallworth." The Certificate of Mailing
portion of the document again reflected neither a date nor a
signature.
• Meanwhile, with respect to Balsam, the trial court
record reflects that on May 21, 2020, plaintiff's counsel
e-filed a Proof of Service reflecting service by email (on
that date) of "Default, Request, Affidavit and
Entry: notice of default Logistics."
"Logistics" presumably referred to Balsam. The
Proof of Service again identified the "Person
Served" as "Maurice Davis," i.e.,
plaintiff's counsel.
• On June 12, 2020. plaintiff's counsel e-filed an
identical Proof of Service reflecting service by email (on
that date) of "Default, Request, Affidavit and
Entry: notice of default Logistics." Again, the
Proof of Service identified the "Person Served" as
"Maurice Davis," i.e., plaintiff's counsel.
• On June 16, 2020, a Default Request and Entry was
entered in the trial court record appearing to reflect the
default of Balram; the request for default bore a date of
June 21, 2020, and was signed by plaintiff's counsel (by
way of the typewritten entry, "/s/ Maurice Davis").
The document nonetheless appears to reflect that the court
clerk entered the default on June 16, 2020- a date preceding
the date of the default request, and the space for the
clerk's signature again reflected the typewritten entry,
"/s/ Stacey Stallworth." The Certificate of Mailing
portion of the document reflected neither a date nor a
signature.
• On June 17, 2020, a Default Request and Entry was
entered in the trial court record again appearing to reflect
the default of Saini. This form was identical to the initial
form filed on May 20, 2020, bearing a request date of April
10, 2020, but now bore an e-signature of plaintiff's
counsel. The document continued to reflect that the court
clerk entered the default on May 20,
2020, inasmuch as the space for the clerk's signature
reflected the typewritten entry, "/s/ Stacey
Stallworth." The Certificate of Mailing portion of the
document-which previously was not completed-bore the
handwritten signature of an unidentified "Linda
Josephson," a handwritten date of "6/12/20,"
and a certification that service was made "on the
appropriate parties or their attorneys by first-class mail
addressed to their last-known addresses as defined by MCR
2.107(C)(3)."
• Also on June 17, 2020, plaintiff's counsel e-filed
a Proof of Service reflecting service by email (on that date)
of "Default, Request, Affidavit and
Entry: Default-Proof of mailing Vichatar Singh
Saini." Again, however, the Proof of Service identified
the "Person Served" as "Maurice Davis,"
i.e., plaintiff's counsel.
• On August 6, 2020, plaintiff filed a motion for
default judgment. The motion asserted that defaults were
entered against Saini and Balram on May 22, 2020 and June 16,
2020, respectively, and that "Notice of default was
mailed to each defendant." The Proof of Service appended
to the motion did not reflect its service on any party, but
merely reflected that the motion was "electronically
filed . . . with the Clerk of the Court using the electronic
filing system."
• Also on August 6, 2020, plaintiff's counsel
e-filed a Proof of Service reflecting service by email (on
that date) of "Miscellaneous Motion, Filed -
PD: Motion for Default Judgment - Watson."
Again, however, the Proof of Service identified the
"Person Served" as "Maurice Davis," i.e.,
plaintiff's counsel.
• The trial court record does not reflect the
contemporaneous filing of any signed Certificate of Mailing
of the June 16, 2020 Default Request and Entry as to Balram.
However, plaintiff later appended (to his June 18, 2021 brief
in opposition to defendants' motion to set aside the
defaults and default judgment) a copy of that form
reflecting-in the Certificate of Mailing portion of the
document (which previously was not completed)-the handwritten
signature of the unidentified "Linda Josephson," a
handwritten date of "8/6/20,"-the same date that
plaintiff filed the motion for default judgment- and a
certification of service "on the appropriate parties or
their attorneys by first-class mail addressed to their
last-known addresses as defined by MCR 2.107(C)(3)."
• On August 10, 2020, plaintiff filed a Notice of
Hearing, scheduling plaintiff's motion for default
judgment for hearing on September 4, 2020. The Certificate of
Service appended to the Notice of Hearing reflected a
certification by plaintiff's counsel "that the
foregoing instrument was served upon all parties to the above
cause by e-mail addressed to each of the attorneys of record
at their respective email addresses disclosed on the
pleadings, on August 10, 2020.[2]
• Also on August 10, 2020, plaintiff's counsel
e-filed a Proof of Service reflecting service by email (on
that date) of "Notice of Hearing:
Notice of Hearing - Watson." Again,
however, the Proof of Service identified the "Person
Served" as "Maurice Davis," i.e.,
plaintiff's counsel.
• On October 1, 2020, plaintiff's counsel filed
another Notice of Hearing, scheduling plaintiff's motion
for default judgment for a Zoom hearing on October 23, 2020.
The Proof of Service appended to the Notice of Hearing
reflected a certification by plaintiff's counsel
"that the foregoing instrument was served upon all
parties to the above cause by mail to their respective
addresses" (and then listing defendants' respective
mailing addresses in Brampton, Ontario).[3]However, this
Proof of Service did not indicate the date of mailing.
The
record provided to this Court does not contain a transcript
for the October 23, 2020 hearing; however, the trial court
stated the following in its opinion and order denying
defendants' later-filed motion for reconsideration:
On October 23, 2020, Plaintiff and his counsel were on Zoom
for the hearing. Defendants did not appear. Plaintiff was
having technical difficulty with Zoom, and the Court was
under the impression a copy of the proof of service of the
complaint was missing from its file, so, after calling the
case on the record, the Court asked Plaintiff's counsel
to ensure all necessary documents were on file and return on
October 30. The Court continued the hearing on October 30,
and granted Plaintiff's motion for default judgment. The
Court scheduled a subsequent date, January 8, 2021, for
continuation of the hearing on damages, but instead of
hearing additional testimony that day, the Court noted that
no new information was available, and stated that it would
issue a judgment based on evidence previously received by the
Court.
The
record contains no notices of hearing or proofs of service
for the October 30, 2020 or January 8, 2021 hearings.
The
trial court entered a default judgment against defendants in
the amount of $800,000 on April 7, 2021. Counsel for
defendants filed an appearance and motion to set aside the
defaults and default judgment on June 9, 2021. Defendants
argued in their motion that the trial court had not
established personal jurisdiction...
